DUAL-EMPLOYER INSPECTIONS

AUTHORITY: California Labor Code Sec. 6400, 6401, 6401.7 and 6402 through 6404.

POLICY: It is the policy of the Division of Occupational Safety and Health to respond appropriately when an investigation or inspection reveals that a dual-employer situation exists. This shall be accomplished by gathering sufficient information to determine, in a manner that is fair, consistent with previous decisions of the Occupational Safety and Health Appeals Board, and protective of employee safety, which employer is to be cited for violative conditions found at the worksite. Dual-employer situations should not be confused with multi-employer worksite situations, which usually involve construction worksites at which employees of two or more employers are present concurrently or in succession.

BACKGROUND:

TYPES OF DUAL-EMPLOYER SITUATIONS

A dual-employer issue exists whenever two or more employers are potentially liable for a violation to which an employee has been exposed. The most common dual- employer situation is one involving a temporary help agency or an employee leasing company which has provided an employee to work at a worksite under the supervision and control of another company.

The company supplying the employee is referred to as the primaryemployer and the company supervising the employee at the worksite is referred to as the secondary employer.

The primary employer is the "contractual" employer of the worker. That is, the primary employer contracts with the employee to perform work in exchange for wages or a salary and issues the employee's pay check, secures workers' compensation insurance for the employee, and usually retains hiring and firing authority.

An employer attains secondary employer status by virtue of supervision and control. In opinions of the Occupational Safety and Health Appeals Board, the secondary employer is also referred to as a "special employer." This term implies that supervision as an indicator of the employment relationship is a mandate that arises out of the California Occupational Safety and Health Act, not out of traditional contractual concepts.

DETERMINING LIABILITY

Secondary Employer Liability

Determining secondary employer liability is usually a simple matter and depends on whether the secondary employer exercised supervision and control over the employee exposed to the violative condition. The fact that the primary employer may also be liable for the violation will usually not affect this determination.

Primary Employer Liability

The rules regarding primary employer liability are general in nature and come from a series of Occupational Safety and Health Appeals Board decisions which have recognized that, while a primary employer must take all reasonable steps necessary to protect the health and safety of its employees (See Labor Code §6403), there are limits to what can reasonably be expected of the primary employer when its employee is working under the supervision of the secondary employer at a worksite which is exclusively under the secondary employer's control.

The Appeals Board's general rule is that the primary employer must always take steps to assure that the employee: (1) is covered by an effective Injury and Illness Prevention (IIP) Program; (2) receives all required general and specific training; and (3) is provided with all required personal protective equipment.

If the primary employer meets these requirements, and has not exercised supervision and control over the employee's work activity at the secondary worksite, then the primary employer will generally not be held liable for violations to which its employee is exposed at the secondary worksite.

When a primary employer fails to comply with the above listed three requirements, it is citable for those violations. In addition, when the primary employer fails to comply with IIP Program coverage and training requirements, the primary employer may also be liable for other types of violations to which its employee is exposed at the secondary worksite.

These are general rules from Appeals Board cases that are designed to deal with situations in which the secondary employer has exclusive control over the worksite and the primary employer has not arranged, in a responsible way, for its employee to be protected at the secondary worksite as required by Title 8.

Thus, the Appeals Board cases do not address many of the complexities that Division compliance personnel are currently encountering and will continue to encounter in this area, e.g., how to apply these rules when the primary employer has some degree of influence over hazards at the secondary worksite, or when the primary employer responsibly arranges for a secondary employer to provide training and personal protective equipment.

The central issues to keep in mind when evaluating situations that do not exactly fit the Appeals Board model are:

the degree of the secondary employer's autonomy from the primary employer (i.e., the extent to which the primary employer can influence conditions at the secondary site); and

the reasonableness of the steps taken by the primary employer to assure the safety of its employees at the secondary site, given the extent to which the primary employer can influence conditions at the secondary worksite.

PROCEDURES:

A. IS THERE A DUAL EMPLOYER SITUATION?

1. If during an investigation or an inspection, it appears that the violations discovered may involve a dual- employer situation, compliance personnel shall expand the investigation or inspection to discover all facts relevant to determining the applicability of dual employer rules by answering the following question:

   Is there evidence that an employer, other than the employer who issues the employee's pay check, was supervising--or was supposed to be supervising--the employee's work?

2. If the answer is NO, then there is no dual employer issue, and there is no reason for further consideration of P&P C-1D.

3. If the answer is YES, then compliance personnel shall determine next what type of dual employer situation exists, as follows:

B. WHAT TYPE OF DUAL EMPLOYER SITUATION EXISTS?

Compliance personnel shall obtain evidence to document answers in the inspection file to the following issues:

1. Secondary Employer Autonomy
   1. Was the primary employer aware of the violative condition found at the secondary worksite?

   2. Did the primary employer control or influence work at the secondary worksite?

   3. Did the primary employer have authority, either by contract or by custom and practice, to enter the secondary worksite to supervise the employee's work?

   4. Did the violation arise because of the secondary employer's reliance on the primary employer for advice or consultation regarding workplace safety and health?

   5. Did the primary employer take action to correct or prevent employee exposure to the violative conditions found at the secondary worksite?

2. IIP Program Coverage and Employee Training

   Did the primary employer provide IIP Program coverage, all required non-IIP Program training, and PPE for the exposed employee? If not, did the primary employer take reasonable steps to ensure that these would be provided to the employee?

   NOTE: See Sections C.2.a.(1)(a) through (d) below for further discussion of reasonable steps a primary employer can take to secure safety for its employees through the secondary employer.

3. Recordkeeping

   If not exempt from 8 CCR §14301, did the secondary employer enter on its Log 300 all recordable injuries and illnesses of employees supervised by the secondary employer, including employees of the primary employer?

   NOTE: The primary employer is not required to log injuries and illnesses occurring at the secondary worksite unless the primary employer on a day-to-day basis.  Any injury or illness should be recorded on the Log 300 only once, either by the secondary employer or by the primary employer, depending on which employer is supervising the employee on a day-to-day basis.

4. Other Issues

   Other issues involving dual-employer situations may occasionally arise which require consideration and investigation. For example, the investigation may lead to the conclusion that the primary employer's employee was exposed to a violation at the secondary worksite due, at least in part, to the primary employer's failure to implement reasonable preventive measures. When confronted by such a situation, compliance personnel shall seek advice from the Legal Unit on how to proceed.

C. CITATION POLICY (See Attachment for Flowchart)

1. Secondary Employer

   The decision about whether to issue a citation always begins with the determination as to whether an employee was exposed to a violative condition. The secondary employer shall be cited for each violation to which the employee was exposed at the site controlled by the secondary employer. This determination shall be independent of whether it is determined that the primary employer is also liable for the violation.

2. Primary Employer

   A primary employer is not citable if there is no employee exposure. In other words, if the primary employer did not attempt to ensure that its employee would be provided a work environment in compliance with Title 8, but the secondary employer still managed to provide one, the primary employer is not citable for a violation. In this case, an information memorandum to the primary employer would be appropriate. If there has been employee exposure to a violation at the secondary site, the decision as to whether and how to cite shall be made as follows:

   1. No Significant Involvement of Primary Employer with Secondary Worksite

      If the answers to questions in Section B.1.a. through d. are all "no," then compliance personnel shall determine liability for violations as follows:

      1. Liability for IIP Program Violations, PPE Violations, and Non-IIP Program Training Violations

         The primary employer shall generally be cited for any failure to comply with 8 CCR §3203, or other regulations requiring the provision of PPE or training. However, do not cite if the primary employer was unaware of the violations and took reasonable action to ensure that IIP Program coverage and all required PPE and training would be provided by the secondary employer.

         Reasonable action consists of taking a series of steps such as the following, or taking other steps which, as a whole, result in a reasonable degree of certainty that IIP Program coverage, PPE, and training will be provided to the employee as required:

         1. Making explicit arrangements in writing with the secondary employer to provide all required IIP Program coverage, PPE, and training, and to keep training current.

         2. Establishing and adhering to a system under which the employee is not allowed to begin work at the secondary worksite until the primary employer has obtained a copy of the secondary employer's IIP Program and the secondary employer has provided confirmation of all required training being completed, including a description of the type of training given;

            NOTE: A documented on-site inspection by the primary employer which includes review of the secondary employer's IIP Program is an acceptable substitute for maintaining a copy of the secondary employer's IIP Program on file.

         3. Establishing and adhering to a system of periodic monitoring of the secondary employer to determine whether the secondary employer is complying with its agreements with the primary employer regarding employee safety; and

         4. Instructing the employee on the types of training the employee is to receive before beginning work at the secondary site, and instructing the employee to contact the primary employer immediately if required to begin working before receiving training, or if the employee feels that the work is unsafe.

      2. Liability for Other Title 8 Violations

         The primary employer shall generally be cited for other types of Title 8 violations only if the primary employer is also citable under C.2.a.(1). However, do not cite for other violations of Title 8 if they are unrelated to the violations cited under C.2.a.(1).

         EXAMPLE: An employee was not trained for respirator use, but was fully trained for forklift operation. The primary employer is potentially citable for violations related to respirator use, but not for violations related to use of a forklift.

   2. Significant Involvement of Primary Employer with Secondary Worksite

      If the answer to any of the questions in Section B.1.a. through d. is "yes," then compliance personnel shall preliminarily evaluate the primary employer under C.2.a. above.

      If the preliminary evaluation indicates that the primary employer is liable for the violation, no further evaluation is necessary. However, if the preliminary evaluation indicates that the primary employer is not liable for the violation, further evaluation shall proceed as follows:

      1. Knowledge of Violation

         In general, if the primary employer knew of the violative condition, the primary employer shall be cited for the violation. However, the primary employer should not be cited if:

         1. The primary employer took reasonable steps to abate the violation;

         2. The primary employer was not able to bring about abatement because of lack of direct control over the site;

         3. The primary employer gave the secondary employer a reasonably short deadline given the severity of the hazard to correct the violation, and the deadline had not passed as of the time the violation was discovered by the Division; and

         4. The violation did not constitute an imminent hazard.

            NOTE: If an imminent hazard is present, the primary employer's reasonable course of action is to inform the employee and prohibit the employee from going to work at the secondary site.

      2. Other Involvement with Secondary Worksite

         If the primary employer had involvement with the secondary site, e.g.,

         1. Controlling or influencing work at the secondary site;

         2. Having authority to enter the secondary site to supervise the employee's work; or

         3. Providing deficient advice or consultation on health and safety matters at the secondary site;

         then the primary employer's liability shall be determined on a case-by-case basis by evaluating the reasonableness of the primary employer's efforts to ensure the safety of the work. This determination should take into account the information available to the primary employer, the primary employer's degree of control over the work environment, and any other relevant facts. The District Manager shall contact the Legal Unit before making this determination.

Attachment -- Primary Employer Liability Flowchart